STATE OF NEW YORK
________________________________________________________________________
7908
IN SENATE
January 19, 2022
___________
Introduced by Sens. PALUMBO, JORDAN -- read twice and ordered printed,
and when printed to be committed to the Committee on Children and
Families
AN ACT to amend the criminal procedure law, in relation to allowing
lifetime orders of protection in certain cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 5 of section 530.12 of
2 the criminal procedure law, as amended by chapter 240 of the laws of
3 2015, is amended to read as follows:
4 Upon sentencing on a conviction for any crime or violation between
5 spouses, between a parent and child, or between members of the same
6 family or household as defined in subdivision one of section 530.11 of
7 this article, the court may in addition to any other disposition,
8 including a conditional discharge or youthful offender adjudication,
9 enter an order of protection. Where a temporary order of protection was
10 issued, the court shall state on the record the reasons for issuing or
11 not issuing an order of protection. The duration of such an order shall
12 be fixed by the court and: (A) in the case of a felony conviction, shall
13 not exceed the greater of: (i) eight years from the date of such
14 sentencing[, except where the sentence is or includes a sentence of
15 probation on a conviction for a felony sexual assault, as provided in
16 subparagraph (iii) of paragraph (a) of subdivision three of section
17 65.00 of the penal law, in which case, ten years from the date of such
18 sentencing], or (ii) eight years from the date of the expiration of the
19 maximum term of an indeterminate or the term of a determinate sentence
20 of imprisonment actually imposed, or (iii) the lifetime of the defendant
21 or the victim, whichever is shorter, in the case of a conviction for any
22 felony under article one hundred twenty, one hundred twenty-five, one
23 hundred thirty, one hundred thirty-five or two hundred sixty-three or
24 section 255.25, 255.26 or 255.27 of the penal law, or an attempt to
25 commit any felony under such articles or sections; or (B) in the case of
26 a conviction for a class A misdemeanor, shall not exceed the greater of:
27 (i) five years from the date of such sentencing, except where the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD13772-01-1
S. 7908 2
1 sentence is or includes a sentence of probation on a conviction for a
2 misdemeanor sexual assault, as provided in subparagraph (ii) of para-
3 graph (b) of subdivision three of section 65.00 of the penal law, in
4 which case, six years from the date of such sentencing, or (ii) five
5 years from the date of the expiration of the maximum term of a definite
6 or intermittent term actually imposed; or (C) in the case of a
7 conviction for any other offense, shall not exceed the greater of: (i)
8 two years from the date of sentencing, or (ii) two years from the date
9 of the expiration of the maximum term of a definite or intermittent term
10 actually imposed. For purposes of determining the duration of an order
11 of protection entered pursuant to this subdivision, a conviction shall
12 be deemed to include a conviction that has been replaced by a youthful
13 offender adjudication. In addition to any other conditions, such an
14 order may require the defendant:
15 § 2. The opening paragraph of subdivision 5 of section 530.12 of the
16 criminal procedure law, as amended by chapter 9 of the laws of 2011, is
17 amended to read as follows:
18 Upon sentencing on a conviction for any crime or violation between
19 spouses, between a parent and child, or between members of the same
20 family or household as defined in subdivision one of section 530.11 of
21 this article, the court may in addition to any other disposition,
22 including a conditional discharge or youthful offender adjudication,
23 enter an order of protection. Where a temporary order of protection was
24 issued, the court shall state on the record the reasons for issuing or
25 not issuing an order of protection. The duration of such an order shall
26 be fixed by the court and, in the case of a felony conviction, shall not
27 exceed the greater of: (i) five years from the date of such sentencing,
28 or (ii) three years from the date of the expiration of the maximum term
29 of an indeterminate sentence of imprisonment actually imposed, or (iii)
30 the lifetime of the defendant or the victim, whichever is shorter, in
31 the case of a conviction for any felony under article one hundred twen-
32 ty, one hundred twenty-five, one hundred thirty, one hundred thirty-five
33 or two hundred sixty-three or section 255.25, 255.26 or 255.27 of the
34 penal law, or an attempt to commit any felony under such articles or
35 sections; or in the case of a conviction for a class A misdemeanor,
36 shall not exceed three years from the date of such sentencing; or in the
37 case of a conviction for any other offense, shall not exceed one year
38 from the date of sentencing. For purposes of determining the duration of
39 an order of protection entered pursuant to this subdivision, a
40 conviction shall be deemed to include a conviction that has been
41 replaced by a youthful offender adjudication. In addition to any other
42 conditions, such an order may require the defendant:
43 § 3. The opening paragraph of subdivision 4 of section 530.13 of the
44 criminal procedure law, as amended by chapter 240 of the laws of 2015,
45 is amended to read as follows:
46 Upon sentencing on a conviction for any offense, where the court has
47 not issued an order of protection pursuant to section 530.12 of this
48 article, the court may, in addition to any other disposition, including
49 a conditional discharge or youthful offender adjudication, enter an
50 order of protection. Where a temporary order of protection was issued,
51 the court shall state on the record the reasons for issuing or not issu-
52 ing an order of protection. The duration of such an order shall be fixed
53 by the court and; (A) in the case of a felony conviction, shall not
54 exceed the greater of: (i) eight years from the date of such sentenc-
55 ing[, except where the sentence is or includes a sentence of probation
56 on a conviction for a felony sexual assault, as provided in subparagraph
S. 7908 3
1 (iii) of paragraph (a) of subdivision three of section 65.00 of the
2 penal law, in which case, ten years from the date of such sentencing],
3 or (ii) eight years from the date of the expiration of the maximum term
4 of an indeterminate or the term of a determinate sentence of imprison-
5 ment actually imposed, or (iii) the lifetime of the defendant or the
6 victim, whichever is shorter, in the case of a conviction for any felony
7 under article one hundred twenty, one hundred twenty-five, one hundred
8 thirty, one hundred thirty-five or two hundred sixty-three or section
9 255.25, 255.26 or 255.27 of the penal law, or an attempt to commit any
10 felony under such articles or sections; or (B) in the case of a
11 conviction for a class A misdemeanor, shall not exceed the greater of:
12 (i) five years from the date of such sentencing, except where the
13 sentence is or includes a sentence of probation on a conviction for a
14 misdemeanor sexual assault, as provided in subparagraph (ii) of para-
15 graph (b) of subdivision three of section 65.00 of the penal law, in
16 which case, six years from the date of such sentencing or (ii) five
17 years from the date of the expiration of the maximum term of a definite
18 or intermittent term actually imposed; or (C) in the case of a
19 conviction for any other offense, shall not exceed the greater of: (i)
20 two years from the date of sentencing, or (ii) two years from the date
21 of the expiration of the maximum term of a definite or intermittent term
22 actually imposed. For purposes of determining the duration of an order
23 of protection entered pursuant to this subdivision, a conviction shall
24 be deemed to include a conviction that has been replaced by a youthful
25 offender adjudication. In addition to any other conditions such an
26 order may require that the defendant:
27 § 4. The opening paragraph of subdivision 4 of section 530.13 of the
28 criminal procedure law, as amended by chapter 9 of the laws of 2011, is
29 amended to read as follows:
30 Upon sentencing on a conviction for any offense, where the court has
31 not issued an order of protection pursuant to section 530.12 of this
32 article, the court may, in addition to any other disposition, including
33 a conditional discharge or youthful offender adjudication, enter an
34 order of protection. Where a temporary order of protection was issued,
35 the court shall state on the record the reasons for issuing or not issu-
36 ing an order of protection. The duration of such an order shall be fixed
37 by the court and, in the case of a felony conviction, shall not exceed
38 the greater of: (i) five years from the date of such sentencing, or (ii)
39 three years from the date of the expiration of the maximum term of an
40 indeterminate sentence of imprisonment actually imposed, or (iii) the
41 lifetime of the defendant or the victim, whichever is shorter, in the
42 case of a conviction for any felony under article one hundred twenty,
43 one hundred twenty-five, one hundred thirty, one hundred thirty-five or
44 two hundred sixty-three or section 255.25, 255.26 or 255.27 of the penal
45 law, or an attempt to commit any felony under such articles or sections;
46 or in the case of a conviction for a class A misdemeanor, shall not
47 exceed three years from the date of such sentencing; or in the case of a
48 conviction for any other offense, shall not exceed one year from the
49 date of sentencing. For purposes of determining the duration of an order
50 of protection entered pursuant to this subdivision, a conviction shall
51 be deemed to include a conviction that has been replaced by a youthful
52 offender adjudication. In addition to any other conditions such an order
53 may require that the defendant:
54 § 5. The criminal procedure law is amended by adding a new section
55 530.13-a to read as follows:
56 § 530.13-a Lifetime orders of protection in certain cases.
S. 7908 4
1 1. (a) Notwithstanding any provision of law to the contrary, a victim
2 of any felony under article one hundred twenty, one hundred twenty-five,
3 one hundred thirty, or one hundred thirty-five or section 255.25, 255.26
4 or 255.27 of the penal law, or any attempt to commit any such felony
5 offense, may file a petition for a lifetime order of protection against
6 the offender who was convicted of such crime in accordance with the
7 procedures set forth in this section.
8 (b) A petition for a lifetime order of protection pursuant to this
9 section may be filed by an unemancipated person under eighteen years of
10 age. Such petition shall be signed by one of the unemancipated person's
11 parents or guardians. The petition may also be signed by a caseworker at
12 a not-for-profit organization that receives funds from the office of
13 children and family services for family violence and child abuse
14 prevention and shelters; provided, however, that a petition signed by a
15 caseworker may not be filed against the unemancipated minor's parent or
16 legal guardian. In such case, unless the court finds that the action
17 would create a threat of serious harm to the minor, a copy of the peti-
18 tion and notice of hearing shall also be served on the parents of the
19 minor child, or if the parents are not living together and jointly
20 caring for the child, upon the primary custodial parent. In cases before
21 the family court where the office of children and family services is a
22 party or where a guardian ad litem has been appointed for the child by
23 the family court, the petition may be filed by the office or the guardi-
24 an ad litem.
25 2. Venue for a petition for a lifetime order of protection under this
26 section is in the county where the respondent resides or the county in
27 which the offense occurred. If the respondent is not a resident of this
28 state, the petition may be filed in the county where the petitioner
29 resides.
30 3. The court shall cause a copy of the petition and notice of the date
31 set for the hearing on such petition to be served upon the respondent at
32 least five days prior to the hearing. The notice shall advise the
33 respondent that he or she may be represented by counsel. In every case,
34 unless the court finds that the action would create a threat of serious
35 harm to the minor, when a petitioner is under eighteen years of age, a
36 copy of the petition, and notice of hearing shall also be served on the
37 parents of the minor child, or in the event that the parents are not
38 living together and jointly caring for the child, upon the primary resi-
39 dential parent, pursuant to the requirements of this section.
40 4. At the hearing on the petition, the court shall, if the petitioner
41 has proved the respondent was convicted of any felony under article one
42 hundred twenty, one hundred twenty-five, one hundred thirty, one hundred
43 thirty-five or two hundred sixty-three of the penal law, or an attempt
44 to commit a felony under such articles and that the petitioner was the
45 victim of the offense, issue a lifetime order of protection that remains
46 in effect for the lifetime of the petitioner or the respondent whichever
47 is shorter. If the petitioner has not provided proof that respondent was
48 convicted of such an offense and that the petitioner was the victim of
49 the offense, the court shall dismiss the petition.
50 5. A lifetime order of protection granted under this section shall:
51 (a) prohibit the respondent from coming about the petitioner for any
52 purpose, from telephoning, contacting, or otherwise communicating with
53 the petitioner, directly or indirectly;
54 (b) include a statement of the maximum penalty that may be imposed
55 pursuant to subdivision seven of this section for violating such order;
56 and
S. 7908 5
1 (c) be valid and enforceable in any county of this state.
2 6. A lifetime order of protection is effective upon the date of issu-
3 ance and shall be served within one year of such date.
4 7. (a) Upon violation of a lifetime order of protection, the court may
5 hold the defendant in civil or criminal contempt and punish the defend-
6 ant in accordance with the law.
7 (b) In addition to the authorized punishments for contempt of court, a
8 judge may assess any person who violates a lifetime order of protection
9 a civil penalty of fifty dollars. The judge may further order that any
10 support payment made pursuant to an order of protection or a court-ap-
11 proved consent agreement be made under an income assignment to the clerk
12 of court. Upon collecting the civil penalty imposed by this subdivision,
13 the clerk shall, on a monthly basis, send the money to the state comp-
14 troller who shall deposit it in the domestic violence awareness fund
15 pursuant to section ninety-seven-yyy of the state finance law as added
16 by chapter 634 of the laws of 2002.
17 8. An arrest for violation of a lifetime order of protection issued
18 pursuant to this section may be with or without warrant. A law enforce-
19 ment officer shall arrest the respondent without a warrant if:
20 (a) the police officer or peace officer has proper jurisdiction over
21 the area in which the violation occurred;
22 (b) the police officer or peace officer has reasonable cause to
23 believe the respondent has violated or is in violation of a lifetime
24 order of protection; and
25 (c) the police officer or peace officer has verified whether a life-
26 time order of protection is in effect against the respondent. If neces-
27 sary, the officer may verify the existence of a lifetime order of
28 protection by telephone or radio communication with the appropriate law
29 enforcement agency.
30 § 6. This act shall take effect immediately; provided that the amend-
31 ments to the opening paragraph of subdivision 5 of section 530.12 of the
32 criminal procedure law made by section one of this act shall be subject
33 to the expiration and reversion of such paragraph pursuant to subdivi-
34 sion d of section 74 of chapter 3 of the laws of 1995, as amended, when
35 upon such date the provisions of section two of this act shall take
36 effect; and provided further that the amendments to the opening para-
37 graph of subdivision 4 of section 530.13 of the criminal procedure law
38 made by section three of this act shall be subject to the expiration and
39 reversion of such paragraph pursuant to subdivision d of section 74 of
40 chapter 3 of the laws of 1995, as amended, when upon such date the
41 provisions of section four of this act shall take effect.